On 28 November 2023, a crucial decision by the Court of Justice of the European Union shed light on the debates surrounding the wearing of religious symbols in the Belgian public sector. In this decision, the Court ruled on the legality of a municipality’s ban on visible religious symbols in the workplace. In essence, she considered that a policy of neutrality is permitted as long as it is applied consistently, without distinction between beliefs or signs. Recently, the Brussels Labour Court issued a ruling to this effect.

The facts underlying the questions referred for a preliminary ruling

The case involved a municipal employee – employed for several years – who subsequently requested to wear a headscarf at work. Her request was rejected by the municipality, which then promptly amended its terms of employment, imposing “exclusive neutrality”, understood as a ban on wearing any conspicuous sign that might reveal the ideological, philosophical, political or religious convictions of employees, both in their contacts with the public and in their internal relations.

The employee then brought several sets of proceedings against these decisions, including an action for an injunction.

The tribunal du travail de Liège (Labour Court, Liège) first ruled that the individual decision to ban the headscarf constituted a direct discrimination based on religious convictions, given that other, more discreet signs of conviction – notably religious – had been tolerated by the employer, and that such a difference in treatment was not justified by essential and determining professional requirements, given that the employee mainly performed back-office duties, with no direct contact with the public.

The Labour Court went on to find that the amendment to the terms of employment constituted, on the face of it, indirect discrimination, noting that the rule introduced by the amendment appeared neutral, but that its application by the municipality was variable. On the basis of this finding, the Labour Court provisionally authorised the employee to wear her headscarf while working in the back office, and also decided to refer two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling, as it had doubts as to whether the work regulations complied with the European directive.

Decision of the CJEU

The CJEU begins by recalling its previous case law (see our newsflash of 26 July 2021), since it had already held – with regard to a private sector employer – that a ban on wearing conspicuous, large-scale signs of belief does not, in principle, constitute direct discrimination, unless the prohibition criterion is inextricably linked to one or more specific religions or beliefs (for example, an explicit and unique ban on wearing the headscarf). However, the CJEU noted that this did not appear to be the case here.

On the other hand, the CJEU also recalls its consistent position that a domestic rule prohibiting the visible wearing of any sign of conviction in the workplace is liable to constitute a difference in treatment indirectly based on religion if that rule – apparently neutral – in reality results in a particular disadvantage for persons adhering to a specific religion. It went on to point out that such a difference in treatment would not, however, necessarily constitute indirect discrimination, provided that it was objectively justified by a legitimate aim and that the means used were appropriate and necessary.

As regards the legitimate aim, the CJEU points out that the various Member States have a margin of appreciation in the concept of public service neutrality they wish to promote in the workplace. The CJEU notes that the local authority’s objective of creating a totally neutral administrative environment could justify such a rule, and therefore considers that the provision of the employment regulations can be considered as pursuing a legitimate aim.

The CJEU points out, however, that – in order to ensure the proper application of this aim – the ban must be applied consistently and systematically, which means that the wearing of any sign, however small, would be likely to undermine the very consistency of this policy. As a result, the CJEU considers that no visible manifestation of convictional signs of any kind whatsoever must be permitted when employees are in contact with users of the public service or with each other, for such a policy to be consistent with the objective pursued.

However, it is exclusively for the national court to assess the facts in order to decide whether the ban on the wearing of convictional signs by the municipality meet a legitimate aim and whether the means implemented are appropriate and necessary, while balancing the interests at stake, namely, on the one hand, freedom of thought and religion, and, on the other, the principle of neutrality of the public service.

In a case where the recruitment process of a woman wearing a headscarf was interrupted by the City of Brussels after she indicated that she refused to remove it during working hours, the Brussels Labour Court, in a judgment dated 15 February 2024, fully applied the case law of the CJEU. The Labour Court ruled that the wearing of religious symbols of any kind was prohibited for all members of staff, and that this was part of a coherent and systematic policy. The measure taken was therefore considered suitable for achieving the legitimate objective pursued by the City of Brussels, and therefore appropriate.

Key message

Employers (in the public sector in this case) can decide to apply a policy of neutrality to all employees, whether or not they are in contact with the public. However, it is important that such a policy is applied consistently and systematically, without distinction between beliefs or signs.